Form of Law: The Charter, Jordan's Principle and government discretion in health services provided to First Nations children

This post is an update to Error of Law, posted yesterday during a trial at the Law Courts in Halifax. In this precedent-setting case, Maurina Beadle and Pictou Landing First Nation are taking the Government of Canada to court over its failure to provide to Beadle's son the same level of health care that a child living off-reserve would receive from the province of Nova Scotia. Background links available below.

Charter conflict

Section 15 of the Charter of Rights and Freedoms, the equality guarantee, ensures that all people have access to equal benefit of the law. The purpose of the Charter is to entrench the goal of equality, in particular to protect those who have been historically disadvantaged.

Canadian law, including the way it is playing out for Jeremy and Maurina Beadle, argued Beadle and the Band's lawyer Paul Champ yesterday morning in his initial submissions, has served up "systemic, deeply entrenched disadvantage to First Nations people." Current systems perpetuate this historic disadvantage, a disadvantage that is based on a historic stereotype that First Nations people do not deserve the same things as other Canadians.

First Nations people have been continuously denied the same level of services on reserve that other citizens have as a matter of course. First Nations people often have to leave their homes in order to get higher level of services if they need it.  

A 2009 impact evaluation report by Indian and Northern Affairs Canada (INAC, now Aboriginal Affairs and Northern Development Canada--AANDC) revealed "significant gaps in services" for the assisted living program. "Children's assisted living needs are not being met by the program," which has been in place since 2003, but "no funding has accompanied this authority." In fact, INAC evaluators were told that parents were giving up custody of their children so their needs could be met off-reserve.

Part of the problem, explained Champ, is that funding relies too heavily on population, not on the needs of the community.

"The disadvantage that First Nations have historically faced on reserves has never been resolved," said Champ. "Never. Never. First Nations people do not have equal access to schools, home care, or health."

Champ read from a report by former Auditor General Sheila Fraser, who evaluated conditions on First Nations reserves in 2011. "'I am profoundly disappointed that despite federal action, a disproportionate number of First Nations people lack basic services that other people take for granted. Many problems faced are due to structural impediments, including...lack of clarity about the services available, lack of legislative base, lack of appropriate funding mechanism and lack of organizational support to provide funding.'"

"This is evidence of historical disadvantage; that is the context in which you must evaluate this case, Justice. Does the law disadvantage the claimant? We submit that it does."

Champ also asked the judge to take into consideration the "nature of the interest," in this case referring to the fact that a service provided in the home is of heightened significance to First Nations people.

Barbara Robinson was the AANDC official who denied the Beadle family the funding required to keep Jeremy Beadle living at home. In making her decision, she stated that, in the Beadle case, the Charter doesn't apply. Champ explained the exception to the guarantee of equality that excludes First Nations people who, because of their unique status, are not entitled to the equal benefit of the law.

First Nations people are the only legal group in Canada identified by race; they therefore fall into a "legal no-man's-land" because their situation can't be compared to anything--there is no comparative group with respect to which they can be discriminated. Therefore the Charter, and cases argued on the basis of "discrimination," cannot be argued. Champ submitted that this is an improper way to interpret Section 15 of the Charter of Rights and Freedoms.

The services provided by the federal government--either by Health Canada or by Aboriginal Affairs--to people on-reserve, are not provided by legal obligation, but as a matter of "policy," based on agreements and programs negotiated with First Nations band councils.

As these services are policy--and not law--they are discretionary, and provided according to the government official who interprets the policy.

These agreements use such language as "Canada has elected to provide" a given service. These services are therefore a choice, provided at the discretion of the Government of Canada, "out of the goodness of their hearts," said Champ.

One such policy, designed to prevent health services from being interrupted because of jurisdictional disputes as a result of a child's Aboriginal status, is Jordan's Principle. Jordan's Principle is named in honour of Jordan River Anderson of Norway House Cree Nation, who spent all his life in hospital while the province of Manitoba and the government of Canada argued over who was responsible for funding the child's care at home. Jordan died at the age of four, having never lived at home.

Jordan's Principle was passed unanimously in the House of Commons in 2007. In many debates in the House, said Champ, there is notable lack of disagreement among political parties that the bill is about human rights and discrimination, acknowledging that children must be protected, and that all children in Canada must be provided with equal opportunities for care.

However, explained Champ, Jordan's Principle is an "expression of the House," and not legally binding. The federal government is seeking to implement the principle across the country. Where there is no formal agreement, there are dialogues premised on Jordan's Principle.

"In any other case, I would not make this argument" that Jordan's Principle legally applies, said Champ, "but in this case, there are no statutes. We have policy manuals, funding agreements that change over time in content and funding levels essentially at the whim of the federal government. Do these policies have the form of law? Yes, because there is nothing else.

"There's nothing to grab onto," said Champ. "There is no Appeal Assistance Board, no Act, not like what Brian Boudreau's mother had." The Boudreau case has been held up as a precedent in Nova Scotia where a severely disabled person was granted funding over and above the standard respite cap due to a provincial program designed specifically to allow disabled persons to remain at home. To do this, the Boudreau case used the Social Assistance Act, which helped define the "normative standard of care." (See Error of Law for details.)

"This"--Jordan's Principle--"is, in a sense, is the best that we have."

The animated purpose of Jordan's Principle, he said, is to acknowledge the fact that First Nations people are in a unique legal situation, and also to rectify the historical disadvantage of First Nations people.

A breach of Jordan's Principle is evidence of discrimination, said Champ. "When a child is denied service for one day, as a result of a jurisdictional dispute, that is a breach of Jordan's Principle, and it is always a breach of Section 15 of the Charter."

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Part I from this court case, Error of Law: Historic court case in Halifax identifies gap in health services for First Nations children

Part III, "Boudreau is the Law": The legal nature of an exception, and health care for First Nations children

Feature post with The Dominion, It's a Matter of Jordan's Principle: Canada's health care system leaves Native child behind

Background and photos, Circle of Strength Offered in Halifax to Women Fighting for Jordan's Principle: Pictou Landing First Nation mother vs. Canada and non-universal health care